Chetcuti v The Commonwealth

The High Court of Australia considered the constitutional validity of treating the appellant, Mr Chetcuti, as an alien for the purposes of s 51(xix) of the Constitution. Mr Chetcuti, born in Malta, entered Australia as a British subject before the commencement of the *Nationality and Citizenship Act 1948* (Cth). He subsequently became a citizen of the United Kingdom and Colonies in 1949 and a citizen of Malta in 1964, without having applied for Australian citizenship. His visa was cancelled following a criminal conviction, leading to the dispute over his status as an alien.

The central legal issue before the Court was whether the Parliament had the constitutional power under s 51(xix) to treat Mr Chetcuti as an alien, given his status as a British subject upon arrival and his subsequent acquisition of other citizenships. This required the Court to determine the meaning of "alien" in the context of Australia's evolving sovereignty and nationality laws, particularly in light of the *Nationality and Citizenship Act 1948*.

The Court's reasoning was informed by the decision in *Shaw*, which held that British subjects entering Australia after the commencement of the *Nationality and Citizenship Act 1948* could be treated as aliens if they had not acquired Australian citizenship. The Court noted that the 1948 Act introduced the concept of Australian citizenship, distinguishing it from the status of British subject. Section 5(1) of the Act defined an alien as a person who was not a British subject, an Irish citizen, or a protected person. Section 7 further stipulated that a person was a British subject if they were an Australian citizen or a citizen of specific Commonwealth countries, including the United Kingdom and colonies. The Court applied this framework, finding that Mr Chetcuti, having entered Australia before the Act and not having become an Australian citizen, fell within the category of persons who could be treated as aliens under s 51(xix) of the Constitution.

The appeal was dismissed with costs.